Judge Lee S. Arian, Case Number: 21STCV25341, Date: 2025-04-22 Tentative Ruling

Plaintiff Tera Linkugel alleges that she stepped into a hole as she exited a golf cart while golfing at the Harding Golf Course. Plaintiff brings a cause of action against the City of Los Angeles, which owns and operates the Harding Golf Course, for dangerous condition of public property under Government Code § 835. Defendant now moves the Court for summary judgment on the grounds that Plaintiff’s claim is barred by the doctrine of primary assumption of risk.

In reviewing a motion for summary judgment or adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”¿(Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”¿(Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)¿A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”¿(Code Civ. Proc., § 437c, subd. (p)(2).)¿If the moving party fails to carry its burden, the inquiry is over, and the motion must be denied. (See Id.; see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)¿Even if the moving party does carry its burden, the non-moving party will still defeat the motion by presenting evidence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-50.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿(Aguilar, supra, 25 Cal.4th at p. 854.)¿It is insufficient for the defendant to merely point out the absence of evidence.¿(Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)¿The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿(Ibid.)¿The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿(Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”¿(Ibid.)¿“If the plaintiff cannot do so, summary judgment should be granted.”¿(Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.) “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.] Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. [Citation.] Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

· The City of Los Angeles owns and operates the Harding Golf Course, which is a 101-year-old, 18-hole, par 72 course that covers approximately 136 acres in Griffith Park in Los Angeles.

· Griffith Park is a large municipal park in Los Angeles that covers more than 4,000 acres.

· Wildlife that live in Griffith Park and may be seen at times on the Harding Golf Course include deer, coyotes and gophers.

· Approximately 85,000 rounds of golf are played annually at the Harding Golf Course.

· At approximately 5:00 p.m. on December 19, 2020, Plaintiff was playing golf at the Harding Golf Course.

· After taking her second stroke on the 6th hole, Plaintiff drove a golf cart to a location near the cart path, the 6th green and her ball.

· Gopher holes may appear at any time, including in an area several hours after it was inspected.

· The groundskeepers regularly inspect for holes on the golf course because there are “so many gophers and coyotes that like to dig up the golf courses” and “the critters do a lot of damage to [the golf course’s] turf.”

Primary assumption of risk is a complete bar to recovery. (Wellsfry v. Ocean Colony Partners, LLC (2023) 90 Cal.App.5th 1075, 1086.) The primary assumption of risk doctrine was developed in recognition that some activities are inherently dangerous such that the defendant has no duty to protect the plaintiff from those inherent dangers. (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154; Knight v. Jewett (1992) 3 Cal.4th 296, 308.) “The primary assumption of risk doctrine rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities.” (Id. at 1156.) “It operates on the premise that imposing such a legal duty ‘would work a basic alteration—or cause abandonment’ of the activity.” (Id. (quoting Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003).) “Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.” (Id. at 1154 (emphasis in original).) “When the doctrine applies, the plaintiff’s assumption of the risk acts as a complete bar to liability.” (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1219.) “Determining whether the primary assumption of risk doctrine applies is a legal question to be decided by the court.” (Id. at 1217.)

“‘[W]hether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.’”¿ (Moser, supra, 105 Cal.App.4th at 1219-20 (quoting Knight, supra, 3 Cal.4th at 309).)¿ “[T]he primary assumption of risk doctrine is not limited to activities classified as sports, but applies as well to other recreational activities ‘involving an inherent risk of injury to voluntary participants . . . where the risk cannot be eliminated without altering the fundamental nature of the activity.’”¿ (Nalwa, supra, 55 Cal.4th at 1156 (quoting Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658).)¿ “Judges deciding inherent risk questions under Knight may consider not only their own or common experience with the recreational activity involved but may also consult case law, other published materials, and documentary evidence introduced by the parties on a motion for summary judgment.”¿ (Id. at 1158.)

Errant shots are an unavoidable and common feature of golf, even for skilled players. “Hitting a golf ball at a high rate of speed involves the very real possibility that the ball will take flight in an unintended direction... That shots go awry is a risk that all golfers, even the professionals, assume when they play.” (Shin v. Ahn (2007) 42 Cal.4th 482, 490, quoting Dilger v. Moyles (1997) 54 Cal.App.4th 1452.)

While it is well-established that being struck by an errant golf ball is an inherent risk of the sport, the question in this case is whether a golfer also assumes the risk of injury caused by topographical features of the course, such as depressions, holes, or variations in the ground surface.

Courts have held that playing golf on an outdoor course necessarily involves exposure to varied and uneven terrain, which forms the essential character of the sport. Golf is played not on a standardized surface, but on terrain that is often deliberately irregular and naturally variable. Players can expect to encounter grass of different types and densities, trees, roots, holes, furrows, rocks, and other natural or course-designed features that affect play. These features are not only anticipated, but fundamental to the game’s challenge and atmosphere. (Wellsfry v. Ocean Colony Partners, LLC (2023) 90 Cal.App.5th 1075, 1086.)

The Wellsfry court emphasized: “The ground surface of a golf course establishes a significant portion of the challenge and atmosphere of golf and constitutes the interface between the golfer and nature that is part of the gestalt of golf." The court concluded that a golfer assumes the risks associated with such topographical features.

Courts in other jurisdictions have similarly applied the doctrine to bar recovery for injuries resulting from interaction with the natural or designed terrain of a golf course. For example:

· In Simon v. Hamlet Windwatch Development, LLC (N.Y.A.D. 2014) 120 A.D.3d 657, the plaintiff was injured after stepping onto a depressed drainage grate; the court held the risk was inherent in golf.

· In Brust v. Town of Caroga (N.Y.A.D. 2001) 287 A.D.2d 923, a golf cart rolled down a slope and struck the plaintiff; the claim was barred because the slope was part of the course’s inherent design.

· In Egeth v. County of Westchester (N.Y.A.D. 1994) 206 A.D.2d 502, the plaintiff tripped over a low mound near a green; the court held that the terrain was an inherent risk of the sport.

· In Hahn v. Town of West Haverstraw (2d Cir. 2014) 563 Fed. Appx. 75, the plaintiff’s injury from a golf cart wheel hitting a stone was found to be inherent to the golf environment.

It is undisputed that wildlife inhabit Griffith Park and are sometimes seen on the Harding Golf Course, including deer, coyotes, and gophers. Gopher holes are observed on the course nearly every day. Groundskeepers regularly inspect for holes because “so many gophers and coyotes […] dig up the golf courses” and “the critters do a lot of damage to the turf.”

According to Sergio Guzman, the City’s Senior Park Maintenance Supervisor responsible for the Harding Golf Course, with thirty-eight years of maintenance experience, the hole shown in Plaintiff’s photograph appears similar to the ones Guzman observed on a daily basis and does not resemble an irrigation hole. Rather, it appears to be a gopher hole that was enlarged by a coyote digging to reach the gopher. (Guzman Dep. at 15:3-14, 16:13-17:12, 36:6-9, 36:23-37:2, 38:19-23, 42:22–25, 47:13-25.)

The Court finds that the presence of wildlife and the resulting terrain disturbances, such as holes or mounds created by gophers and enlarged by coyotes, are analogous to the natural features identified in Wellsfry v. Ocean Colony Partners. In Wellsfry, the Court held that irregularities in the ground surface, including holes, grass variations, roots, and uneven terrain, are inherent to the outdoor golf experience. Similarly, at Harding Golf Course, within Griffith Park, wildlife such as gophers and coyotes are known to be readily present, features like burrows and animal disturbances are expected conditions of the course. Whether Plaintiff tripped over a resting animal or stepped into a hole created by one, the condition at issue is part of the natural terrain and falls within the inherent risks assumed by those who choose to play golf on such a course.

Plaintiff cites to Little v. Jonesboro Country Club (Ct. App. Ark., Div. I, Case No. CA05-179, Sept. 7, 2005), where the Arkansas Court of Appeals reversed summary judgment in a case involving a golfer who stepped into an uncovered and obscured irrigation valve hole located off the 16th fairway. Little is not binding authority, and, in any event, it is distinguishable from the present case. The Little opinion does not analyze or apply the doctrine of primary assumption of risk. The facts are also materially different. In Little, the plaintiff fell into a man-made valve hole that was part of the golf course’s underground irrigation system, not a natural topographical feature of the course. Further, the hole was entirely obscured by grass and therefore hidden from view. By contrast, the hole at issue in this case was not caused by a hidden valve but was part of the natural terrain and was plainly visible. Accordingly, Little is neither controlling nor persuasive under the circumstances of this case.

As to Plaintiff’s argument that the hole was caused by leakage in the irrigation pipes, there is no citation to evidence supporting this contention. Plaintiff offers no competent evidence to contradict Guzman’s testimony that he observes holes like the subject hole almost every day and identified it as a gopher hole, enlarged by coyotes attempting to dig out the gopher. (Guzman Dep. at 42:22–25.)

Plaintiff cites to Kim’s testimony that he had no idea what caused the hole, and that he was generally aware of irrigation line leaks. (Kim Dep. at 39:19–22; 40:25–42:3.) However, there is nothing in Kim’s testimony that ties any irrigation line leak to the subject hole. Plaintiff also cites evidence regarding gopher mounds or size of the hole, but Guzman has already explained that the hole in question was consistent with gopher activity and further enlarged by coyotes.

Plaintiff presented evidence that irrigation lines run across the field; however, because the lines run across the fairway and do not run parallel to the fairway, their presence in the fairway is limited. Plaintiff has not provided any evidence establishing the proximity of the irrigation lines to the hole in question. Although Plaintiff produced maps (Bates Nos. 000011–000027), the maps are indecipherable to a layperson without expert interpretation. The Court notes that the maps contain sufficient information regarding irrigation lines, boundaries, trails, and trees for Plaintiff to locate the subject hole and determine its proximity to irrigation infrastructure through expert analysis. However, Plaintiff has not offered any expert testimony to interpret the maps or to establish that the irrigation infrastructure is located near the subject hole.

Plaintiff offers two expert declarations. Brad Avrit’s declaration does not support Plaintiff on the issue of primary assumption of risk. Avrit does not state that the subject hole resembled a sinkhole caused by irrigation pipe leakage. In fact, his observation that the hole was not freshly formed, due to the absence of grass and the presence of visible dirt, merely suggests that the hole existed for some time prior to the incident. At most, this relates to the issue of notice, not whether the condition was inherent to the sport of golf. Avrit offers no opinion addressing whether the hole was a naturally occurring feature commonly found on outdoor golf courses or whether the risk of encountering such terrain is inherent in the game.

Plaintiff relies on Anthony Petersen’s declaration to suggest that the hole was caused by a leaking irrigation pipe rather than animal activity. (Petersen Decl., ¶ 18.) Petersen states that sinkholes caused by leaking pipes may be deeper and more irregular than animal burrows and distinguishes features such as shape, size, and depth. However, Petersen’s declaration is insufficient for several reasons.

First, Petersen is a plumber and does not establish any specialized knowledge or qualifications regarding gopher holes or animal activity on golf courses. His opinion lacks foundation as to what a gopher hole, particularly one enlarged by coyotes, would look like. In contrast, Guzman, the City’s Senior Park Maintenance Supervisor with over 38 years of experience maintaining golf courses, testified that he has observed holes like the subject hole “almost every day” and identified the hole as consistent with a gopher hole that had been further enlarged by coyotes digging in pursuit of gophers. (Guzman Dep. at 42:22–25.)

Second, Petersen does not actually state that the hole in this case resembles a sinkhole or is consistent with a waterline failure. Rather, the majority of his declaration offers only general hypotheticals of potential causes of sink holes, without applying those criteria to the facts of this case. While Petersen offers pictures of gopher holes and fox holes for comparison, but Petersen does not offer photos of sinkholes for comparison.

Third, Petersen declares that the subject hole does not resemble a gopher hole or a fox hole. However, Guzman has testified that it is not merely a gopher hole or a fox hole, but a gopher hole that has been significantly enlarged by coyotes digging in pursuit of gophers. And, as noted above, Petersen is not an expert in gopher or fox holes.

Fourth, even if a break in an irrigation pipe had occurred, the pipes are 2.2 inches in size and any rupture would cause significant water discharge, creating a much larger and more obvious collapse. Guzman testified that if an irrigation pipe failed, “it’s going to make a huge hole,” not a small animal-sized depression like the one at issue here. (Guzman Dep. at 36:16–37:8.) Petersen advances a theory that the subject hole was caused by a prolonged period of small irrigation leaks, but there is no evidence in the record to support the existence of such small leaks, let alone any evidence that irrigation lines are located in the vicinity of the subject hole.

Petersen’s declaration is based on speculation and lacks any evidentiary link between a pipe failure and the subject hole.

Accordingly, Defendant’s assumption of risk defense provides a basis for summary judgment and, the Court thus grants the motion.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court